[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
SECOND CLASS WORKERS: ASSESSING
H-2 VISA PROGRAMS' IMPACT ON WORKERS
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HEARING
Before The
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
of the
COMMITTEE ON EDUCATION AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JULY 20, 2022
__________
Serial No. 117-52
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: edworkforce.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
58-473 PDF WASHINGTON : 2025
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COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
RAUL M. GRIJALVA, Arizona VIRGINIA FOXX, North Carolina,
JOE COURTNEY, Connecticut Ranking Member
GREGORIO KILILI CAMACHO SABLAN, JOE WILSON, South Carolina
Northern Marina Islands GLENN THOMPSON, Pennsylvania
FREDERICA WILSON, Florida TIM WALBERG, Michigan
SUZANNE BONAMICI, Oregon GLENN GROTHMAN, Wisconsin
MARK TAKANO, California ELISE M. STEFANIK, New York
ALMA S. ADAMS, North Carolina RICK W. ALLEN, Georgia
MARK DeSAULNIER, California JIM BANKS, Indiana
DONALD NORCROSS, New Jersey JAMES COMER, Kentucky
PRAMILA JAYAPAL, Washington RUSS FULCHER, Idaho
JOSEPH D. MORELLE, New York FRED KELLER, Pennsylvania
SUSAN WILD, Pennsylvania MARIANNETTE MILLER-MEEKS, Iowa
LUCY McBATH, Georgia BURGESS OWENS, Utah
JAHANA HAYES, Connecticut BOB GOOD, Virginia
ANDY LEVIN, Michigan, Vice Chairman LISA McCLAIN, Michigan
ILHAN OMAR, Minnesota DIANA HARSHBARGER, Tennessee
HALEY M. STEVENS, Michigan MARY MILLER, Illinios
TERESA LEGER FERNANDEZ, New Mexico VICTORIA SPARTZ, Indiana
MONDAIRE JONES, New York SCOTT FITZGERALD, Wisconsin
KATHY MANNING, North Carolina MADISON CAWTHORN, North Carolina
FRANK J. MRVAN, Indiana MICHELLE STEEL, California
JAMAAL BOWMAN, New York CHRIS JACOBS, New York
SHEILA CHERFILUS-McCORMICK, Florida VACANCY
MARK POCAN, Wisconsin VACANCY
JOAQUIN CASTRO, Texas
MIKIE SHERRILL, New Jersey
ADRIANO ESPAILLAT, New York
KWEISI MFUME, Maryland
Veronique Pluviose, Staff Director
Cyrus Artz, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
ALMA ADAMS, North Carolina, Chairwoman
MARK TAKANO, California FRED KELLER, Pennsylvania,
DONALD NORCROSS, New Jersey Ranking Member
PRAMILA JAYAPAL, Washington ELISE M. STEFANIK, New York
ILHAN OMAR, Minnesota MARIANNETTE MILLER-MEEKS, Iowa
HALEY M. STEVENS, Michigan BURGESS OWENS, Utah
MONDAIRE JONES, New York BOB GOOD, Virginia
SHEILA CHERFILUS-McCORMICK, Florida MADISON CAWTHORN, North Carolina
ROBERT C. ``BOBBY'' SCOTT, Virginia MICHELLE STEEL, California
VIRGINIA FOXX, North Carolina (Ex
Officio)
C O N T E N T S
----------
Page
Hearing held on July 20, 2022.................................... 1
OPENING STATEMENTS
Adams, Hon. Alma, Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 5
Keller, Hon. Fred, Ranking Member, Subcommittee on Workforce
Protections................................................ 7
Prepared statement of.................................... 9
WITNESSES
Costa, Daniel, Director, Immigration Law and Policy Research,
Economic Policy Institute.................................. 10
Prepared statement of.................................... 13
Romero, Teresa, President, United Farm Workers............... 72
Prepared statement of.................................... 74
Sequeira, Leon, Private Practice Attorney.................... 86
Prepared statement of.................................... 88
Pinkins, Ty, Consumer Protection Attorney, Mississippi Center
for Justice................................................ 95
Prepared statement of.................................... 98
ADDITIONAL SUBMISSIONS
Chairwoman Adams:
Statement for the record dated July 20, 2022, from AFL-
CIO.................................................... 105
Ranking Member Keller:
Letter dated August 1, 2022, from the American Farm
Bureau Federation (AFBF)............................... 130
Mr. Leon Sequeira:
Letter dated August 3, 2022, to Ranking Member Keller.... 132
Letter dated January 31, 2022, from USA Farmers.......... 133
Letter dated September 24, 2019, from USA Farmers........ 139
Article dated September 19, 2019, titled ``Proposed H-2A
Changes Tries But Fails to Contain Considerable Wage
Variability''.......................................... 154
SECOND CLASS WORKERS: ASSESSING
H-2 VISA PROGRAMS' IMPACT ON WORKERS
----------
Wednesday, July 20, 2022
House of Representatives,
Subcommittee on Workforce Protections,
Committee on Education and Labor,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:17 a.m., at
2175 Rayburn Office Building, Hon. Alma Adams (Chairwoman of
the Subcommittee) presiding.
Present: Representatives Adams, Takano, Norcross, Jayapal,
Cherfilus-McCormick, Scott (Ex Officio), Keller, Stefanik,
Miller-Meeks, Good, Steel, and Foxx (Ex Officio).
Staff present: Brittany Alston, Staff Assistant; Nekea
Brown, Director of Operations; Ilana Brunner, General Counsel;
Rasheedah Hasan, Chief Clerk; Sheila Havenner, Director of
Information Technology; Eli Hovland, Policy Associate;
Stephanie Lalle, Communications Director; Kevin McDermott,
Director of Labor Policy; Kota Mizutani, Deputy Communications
Director; Kayla Pennebecker, Staff Assistant; Mason Pesek,
Labor Policy Counsel; Veronique Pluviose, Staff Director;
Dhrtvan Sherman, Staff Assistant; Banyon Vassar, Deputy
Director of Information Technology; Sam Varie, Press Secretary;
ArRone Washington, Clerk and Special Assistant to the Staff;
Cyrus Artz, Minority Staff Director; Michael Davis, Minority
Legislative Assistant; Cate Dillon, Minority Director of
Operations; Mini Ganesh, Minority Staff Assistant; John Martin,
Minority Deputy Director of Workplace Policy/Counsel; Hannah
Matesic, Minority Director of Member Services and Coalitions;
Audra McGeorge, Minority Communications Director; Ethan Pann,
Minority Press Assistant; Gabriella Pistone, Minority Staff
Assistant; Ben Ridder, Minority Professional Staff Member;
Krystina Skurk, Minority Speechwriter; Kelly Tyroler, Minority
Professional Staff Member.
Chairwoman Adams. Thank you. Good morning, everyone. We are
ready to begin, and I am going to count down from five and then
we will start. Five, four, three, two, one. The Subcommittee on
Workforce Protections will come to order. Welcome everyone. I
note that a quorum is present.
The subcommittee is meeting today to hear testimony on
second class workers, assessing H-2 visa programs' impact on
workers. This is a hybrid hearing. Pursuant to House Resolution
8, and the regulations thereto. All microphones, both in the
room and on the platform, will be kept muted as a general rule
to avoid unnecessary background noise.
Members and witnesses will be responsible for unmuting
themselves when they are recognized to speak or when they wish
to seek recognition. When members wish to speak, or seek
recognition, they should unmute themselves and allow a pause of
2 seconds to ensure that the microphone picks up their speech.
I also ask that members please identify themselves before
they speak. Members who are participating in person should not
be logged on to the remote platform or should not be logged on
to the remote platform in order to avoid feedback, echoes and
distortion. Members participating remotely shall be considered
present in the proceeding when they are visible on camera, and
they shall be considered not present when they are not visible
on camera.
The only exception to this is that if they are experiencing
technical difficulty, they should inform the committee staff of
such difficulty. If any member experiences technical difficulty
during the hearing, you should stay connected on the platform,
make sure you are muted, and use your phone to immediately call
the Committee's IT Director whose number was provided in
advance.
Should the Chair need to step away for any reason, another
majority member is hereby authorized to assume the gavel in the
Chair's absence. In order to ensure that the committee's 5-
minute rule is adhered to, staff will be keeping track of time
using the committee's digital timer on the remote platform.
For members participating in person, the timer will be
broadcast in the committee room on the television monitor as
part of the platform gallery view, and visible in its own
thumbnail window. The committee room timer will not be in use.
For members participating remotely, this will be visible in
gallery view on its own thumbnail window on the remote
platform. Members are asked to wrap up promptly when their time
has expired.
Finally, while the recent guidance from the Office of the
Attending Physician has made mask wearing optional at this
time, please know that we have in our midst at both the member
and staff levels, individuals who are immune compromised, and
who have immediate family members who are immune compromised,
as well as who are not vaccinated either due to medical
reasons, or because the vaccine is not yet available to
children under 6 months of age.
Therefore, the committee strongly recommends that masks
continue to be worn out of concern for the safety of
unvaccinated and immune compromised committee members and staff
and their families. Pursuant to Committee Rule 8(c), opening
statements are limited to the Chair and the Ranking Member.
This allows us to hear from our witnesses sooner and
provides all the members with adequate time to ask questions. I
recognize myself now for the purpose of making an opening
statement.
Good morning. Today we are meeting to discuss the important
role temporary migrant workers sometimes called guest workers,
play in our economy, and the critical need for increased
accountability and worker protections. The H-2A and H-2B Visa
Programs allow U.S. employers to bring foreign workers to the
U.S., to fill temporary agricultural and nonagricultural jobs
for which U.S. workers are not available.
Tens of thousands of foreign citizens apply for admission
to the United States each year under these H-2 programs, and
applications are growing, and so are visa issuances, excuse me.
In fact, in 2019 agricultural visa issuances exceeded 200,000
for the first time since the beginning of the program.
According to the latest data, the combined number of H-2A
and H-2B visas issued was just under 353,000. Workers apply for
H-2 visas to achieve economic opportunity, to escape poor
working conditions, and ultimately with the hope that their
employment can lead to a better life in America. Regrettably,
the programs too often fail to deliver on these goals. Instead,
as our witness Mr. Daniel Costa put it, ``When it comes to H-2A
and H-2B programs, the U.S. Government is failing to meet these
basic standards and provide these basic rights to workers.''
For example, temporary migrant workers can be charged
exorbitant fees by recruiters for the opportunity to work
temporarily in the U.S. Meanwhile, these recruiters are rarely
held liable for the recruitment fees and abusive tactics.
In a recent case, Operation Blooming Onion, prosecutors
charged H-2A owners, contractors, and recruiters, while selling
for trading workers, requiring them to dig onions with their
bare hands, paying 20 cents for each bucket harvested, and
threatening the victims with guns and violence to keep them in
line.
Allegations also include kidnapping, rape, and threats of
violence and death to family members. The victims were
allegedly held in cramped, unsanitary fenced work camps to
prevent them from escaping, while little or no food, limited
plumbing, and without safe water. At least two of the workers
died because of these workplace conditions.
This is not economic opportunity. It is not a chance for a
better life. This is Federal prosecutors--as Federal
prosecutors have described, is modern day slavery. Problems
with this program affect workers in communities across the
country. My home State of North Carolina is one of top five
employers of H-2A workers. The Midwest Center for Investigative
Reporting spoke to many immigrant laborers who have become
physically and mentally ill, working North Carolina's tobacco
fields.
One H-2A worker said I have seen my coworkers suffer from
tobacco sickness. A lot of them get allergies, others get
insomnia, vomiting, many get dehydrated. There were times when
the workers would need to go for IV drips at local clinics.
Baldemar Velasquez, Co-Founder and President of the Farm
Labor Organizing Committee told the reporters no worker in his
right mind is going to complain. There is no way to protect the
workers from complaints, and to protect them from retaliation.
Cases like Operation Blooming Onion are the direct result of
extraordinary power and balance between workers and employers
in this type of visa program. Unlike workers who are U.S.
citizens or permanent residents, H-2 workers cannot easily
switch jobs or employers, which is one of the most fundamental
protections of a competitive labor market. Instead, when
confronted with an unscrupulous employer, they are too often
forced to remain silent, rather than speak up and risk
retaliation or deportation.
Exploiting foreign workers also hurts American workers. We
all know that when workers have more power in the workplace,
they have higher wages, better benefits, and safer workplaces.
By contrast, exploiting workers leads to degrading wages, and
working conditions for all workers in the same occupation.
Moreover, we have a real example of H-2A workers displacing an
existing local workforce.
As Mr. Ty Pinkins will testify, local black workers have
been the backbone of the Mississippi Delta farm economy for
generations, and they would like to continue these jobs.
However, the same local farmers who employed these workers for
decades are now filling the jobs with H-2A workers. These
employers also paid the H-2A workers significantly more money
for the same or similar work, previously done by local black
workers.
We should agree that all workers, both foreign and
American, deserve to be treated with dignity and respect. As
such, we have a responsibility to reform the H-2 Visa Program.
Today I look forward to discussing several proposed solutions
focused on prohibiting discrimination, holding recruiters and
employers liable for visas, mandating the use of prevailing
wages and strong labor standards, providing a path to
citizenship, and protecting workers from retaliation.
These important steps, coupled with other critical
provisions to increase worker protections and accountability,
will ensure that workers can succeed in fair working
conditions. Thank you to our witnesses for joining us today. I
look forward to our discussion. I now recognize our
distinguished Ranking Member for the purpose of making an
opening statement, Mr. Keller.
[The statement of Chairwoman Adams follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Keller. Good morning. Thank you to the witnesses for
being here today. Hundreds of thousands of illegal aliens are
pouring across the border every month because of President
Biden's open border policies. Democrats are holding a hearing
about nuances of legal temporary guest worker programs. This is
a case of missing the forest through the trees.
Discussing reforms to the H-2 programs make little sense
when the border is open and immigration laws are not enforced.
H-2 employers following the rules cannot compete with bad
actors hiring illegal aliens who are coming into the country in
record numbers.
Employers need the ability to bring in temporary guest
workers when no U.S. workers are available. Although the H-2
programs should be more efficient and easier for employers to
use, these programs are certainly in need of reforms. These
programs are far from our primary concern.
In 2021, Border Patrol agents arrested almost 2 million
aliens trying to cross the border illegally. That does not
count the 700,000 aliens who entered the country without being
apprehended since President Biden took office. In May alone,
almost 240,000 aliens were encountered at the southern border,
an historic high.
What caused the massive influx of illegal crossings in
dangerous conditions? President Biden's open border policies.
Ending the Trump era Remain in Mexico policy, suspending asylum
agreements with the Northern Triangle countries, and stopping
construction of the border wall. President Biden has done
everything in his power to make our border less secure and
Americans less safe.
Under the Catch and Release Policy, over a million aliens
have been allowed to enter the country with little hope that
they will show up for their asylum hearing. Asylum hearings
that will not be scheduled for two to 3 years because of a
massive backlog. We also recently discovered that sponsors of
unaccompanied alien children, who sometimes house and care for
these children, do not need to be in the United States lawfully
themselves, raising serious questions about our vetting
processes.
Many of these did not get the unaccompanied minors to the
required legal proceedings. Both the Biden administration's
rhetoric and policies are creating incentives for more aliens
to flood the border. For example, instead of trying to secure
the border, the Biden administration is fighting to end Title
42, which could increase border encounters from approximately
7,700 a day to up to 18,000 people per day.
The Biden administration's policies are enriching human
traffickers and drug cartels. This sonola cartel for example,
is making a fortune smuggling drugs that are killing Americans.
90 percent of Fentanyl enters the U.S. from the southern border
and is now the leading cause of death among Americans ages 18
to 45.
These ruthless smugglers have also been known to abandon
children in the desert, place aliens in unsafe conditions, and
abuse women and children in the process. The Biden
administration's decision to ignore immigration laws, bolstered
by congressional Democrats' endorsement of this behavior, makes
this topic of this hearing misguided at best.
President Biden's willful decision to ignore immigration
laws makes every American less safe. Until the border is
secure, the wall is built, and our immigration laws are being
enforced, we will not be able to have a meaningful discussion
about reforming H-2 work visa programs. Thank you and I yield
back.
Chairwoman Adams. Thank you, Mr. Keller. Without objection,
all other members who wish to insert written statements into
the record may do so by submitting them to the committee clerk
electronically in Microsoft Word format by 5 p.m. on August 3.
I will now introduce the witnesses.
Mr. Daniel Costa is the Director of Immigration Law and
Policy Research at the Economic Policy Institute and a Visiting
Scholar at the Global Migration Center at the University of
California. Mr. Costa is an expert on H-2 visa programs, and
has extensive knowledge of how the programs operate, and
current issues within both programs.
Ms. Teresa Romero is the President of the United Farm
Workers. The United Farm Workers is the largest farm worker
labor union in the country, and in her role as President, Miss
Romero can speak to the issues facing H-2A and other farm
workers.
Mr. Leon Sequeira is an attorney in private practice and
provides advice and counsel to clients who employ H-2A and H-2B
guest workers. Mr. Sequeira has extensive knowledge of the H-2A
and H-2B programs and has previously served as an Assistant
Deputy Secretary of the Department of Labor under the George W.
Bush administration.
Mr. Ty Pinkins is a Consumer Protection Associate at the
Mississippi Center for Justice. Mr. Pinkins represents black
farmers in the Mississippi Delta who have been displaced by H-2
workers employed by local growers, and he will speak in detail
on how the misuse of H-2 programs affects local workers and the
economy.
We appreciate the witnesses for participating today, and we
look forward to your testimony. I do want to remind the
witnesses that we have read your written statements, and they
will appear in full in the hearing record. Pursuant to
Committee Rule 8(d) and committee practice, each of you is
asked to limit your oral presentation to a 5-minute summary of
your written statement.
Before you begin your testimony, please remember to unmute
your microphone, during your testimony staff will be keeping
track of time, and the timer is visible to you at the witness
table. Please be attentive to the time, wrap up when your time
is over, and re-mute your microphone.
We will let all of the witnesses make their presentations
before we move to member questions. When asking a question,
please remember to unmute your microphone. The witnesses are
aware of their responsibility to provide accurate information
to the subcommittee, and therefore we will proceed with their
testimony.
I want to first recognize Daniel Costa, you are recognized
sir for 5 minutes.
[The statement of Ranking Member Keller follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF DANIEL COSTA, DIRECTOR OF IMMIGRATION LAW AND
POLICY RESEARCH, ECONOMIC POLICY INSTITUTE
Mr. Costa. Thank you. Good morning, Madam Chair Adams,
Chairman Scott, Ranking Member Keller, and other distinguished
members of the Subcommittee and Committee. Continuing my
background in issues I care about, it is a particularly great
honor to be before the Subcommittee today, and I am grateful to
the committee that they have decided to examine the issues
before us.
I grew up in, and currently live in, the agricultural
heartland of California, in the Great Central Valley. My mom,
when she came to the United States from Mexico, first worked
there in a poultry plant, meat processing being one of the main
H-2B occupations, and in fact she still worked there while she
was pregnant with me.
My entire dad's side of the family, when they immigrated to
the U.S., almost all worked on dairies milking cows in San
Joaquin Valley. All of that is just to say that I do not come
at this issue from the perspective of just such someone who is
a lawyer and researcher.
I feel deeply connected with these issues, and I have been
around them almost all my life. I care deeply about this work,
and mainly just want to improve conditions for migrant workers
and American workers in all of the industries that we are going
to discuss today, thus I hope my testimony will be useful to
the committee.
Since we are here today to discuss H-2A, H-2B, two of the
U.S.'s most discussed, and sometimes controversial visa
programs, first I would like to start off and say a few words
about those programs in general, which I have studied and read
about for over a dozen years.
Most importantly, I want to discuss why they are flawed and
need to be fixed by Congress and Federal agencies, and why they
are not, as presently constituted, fair labor immigration
pathways for workers.
Temporary worker programs are an instrument ultimately used
to deliver migrant workers to employers, but without having to
afford them equal rights, dignity, or the opportunity to
integrate and participate fully in political life.
While such programs may serve as important pathways for
migrants to come to the United States, the numerous
programmatic flaws that undermine labor standards and leave
migrant workers vulnerable to abuses, and even human
trafficking, clearly demonstrate a need for dramatic
improvements.
What are the major flaws in temporary worker visa programs?
Here is a quick list. Illegal recruitment fees and debt bondage
are common. Temporary work visa programs permit employers to
circumvent U.S. antidiscrimination laws and segregate the
workforce.
The visa status of workers is usually tied to their
employer, thus chilling labor rights, preventing job mobility
and enabling employer lawbreaking. Temporary migrant workers
are often legally underpaid.
Oversight is lacking, leaving workers unprotected. Most
temporary migrant workers cannot transition to a permanent
immigrant status and the few programs that offer that pathway,
is controlled by employers. Finally, many temporary migrant
workers are separated from their families while they are
employed in the United States.
These temporary work visa programs can and should be
reformed to comport with universal human rights labor rights
standards. Considering that a record number of temporary
migrant workers are now employed in the United States, more
than two million, with many performing jobs that are now deemed
``essential'', the need to protect these workers has never been
more acute.
Now just a few words about the H-2A and H-2B program
specifically. Employers and defenders of the H-2A and H-2B
programs as presently constituted will tell you that you should
not worry about or think about H-2B or H-2A because the workers
represent such a small share of the workforce, and that
anyways, no American workers want to work in agriculture,
landscaping, or hospitality. They will say for example, the H-
2B is only 66,000 workers in the labor market of 160 million,
therefore it is a drop in the bucket in terms of the labor
force.
First of all, the reality is that the programs have grown
rapidly, a number of H-2A workers was 300,000 last year, and
the H-2B program is now more than twice the size of the annual
cap.
Well, if it were actually the case that we were just
talking about 300,000 H-2A or 150,000 H-2B workers, all of whom
have rights and could go work for whichever employer they
wanted to and have a path to citizenship, and yes, there would
be many fewer concerns about these programs.
Instead, the reality is that H-2 workers do not have rights
and cannot go work for whichever employer will offer the best
conditions and highest pay. Instead, the migrant workers in the
H-2 programs are recruited and hired by employers that control
their immigration status and job opportunities.
They go into a small, closed universe of occupations and
employers. Nearly all H-2A workers are employed in crops, and
there are more than 9,000 H-2A employers. Nearly all H-2B
workers are employed in just ten occupations, and there are
only 5,000 H-2B employers. That is 5,000 employers out of a
labor market with about 11 million establishments nationwide,
and that is to say workplaces nationwide.
It is just a very tiny sliver of the labor market that
those workers can actually participate in. That means that who
H-2 workers can work for, and where they can work is severely
limited. They have no say over it, and they have no power once
they get to that workplace. We know from wage and hour
enforcement data, their wage theft is all too common in the
industry that H-2 workers are recruited into.
What is desperately needed then is a way for workers to
come forward and have power to report abuses without fear, so
they can be paid fairly and treated with dignity and to not
have a fear of losing their paycheck or their immigration
status.
Part of that is also having labor standard enforcement
agencies that are adequately funded and staffed, so they can
accomplish their mission of protecting wages and working
conditions, as well as holding employers accountable when they
break the law, and finally migrant workers in H-2 programs need
to have access to a quick path to permanent residence and
citizenship, and to not have to labor in a precarious and
temporary immigration status, sometimes for decades, when it
can be easily robbed and exploited by employers and recruiters
because of that status.
With that I will conclude, and I look forward to any
questions from the committee.
[The prepared statement of Daniel Costa follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you, Mr. Costa. We will now hear
from Teresa Romero. You have 5 minutes ma'am.
STATEMENT OF TERESA ROMERO, PRESIDENT, UNITED FARM WORKERS
Ms. Romero. Chair Adams, Ranking Member Keller, Chair
Scott, Ranking Member Foxx, and distinguished members of the
Subcommittee, thank you for the opportunity to testify today.
My name is Teresa Romero, and I am the President of the United
Farm Workers, the UFW.
Today I am testifying on behalf of the UFW and the UFW
Foundation. We are proud to represent farm workers. Every day,
farm workers work in difficult and dangerous conditions to feed
our Nation. They care for dairy cows to ensure our milk
production, tend livestock for our meat, and plant and then
harvest fruits and vegetables for our daily nourishment.
Without farm workers, our food industry and security would
collapse. We welcome this hearing on the H-2A visa programs. We
are deeply troubled by the many abuses of the H-2A, and
domestic workers associated with the H-2A program, and believe
this hearing provides an opportunity to expose the inherently
flawed nature of these programs.
The challenges of the H-2A program cannot be understood in
isolation but instead must be considered in the context of our
broken immigration system. Discriminatory labor law exclusions,
and widespread violations of farm workers' limited rights.
Unfortunately, the H-2A regulations are inadequate to protect
both H-2A and domestic workers.
There is a tremendous power imbalance between H-2A workers
and their employers. As I have explained in my written
testimony, H-2A farm workers rely on their employer for the
visa, housing, transportation, and would lose their opportunity
to work in the U.S. if they lose their job. Challenges facing
H-2A domestic workers began during the recruitment process with
widespread fraud, illegal fees, gender and age discrimination,
and more.
Recruitment fees and other travel costs, as well as
coercion, leave workers indebted and reluctant to enforce their
workplace rights, as they are desperate to repay their debt,
and fear other possible repercussions to them and to their
families. The Operation Blooming Onion shows the H-2A program
presents tremendous dangers farm workers.
The allegations in the case are devastating, and include
criminal charges of multiple deaths, rape, and forced labor.
This case demonstrates the inherent flaws of the H-2A program,
and the government's inability to enforce the H-2A--the modest
H-2A protections that do exist.
The government still does not know how many potential
victims there may be. The violations that were exposed are not
isolated instances. Additional government investigations and
indictments, Polaris's data, and our own experiences made that
crystal clear. Our government is running a program with
multiple workplace abuses, deaths, and rapes. The H-2A program
must not be allowed to continue as is.
Congress and the administration have the obligation to make
meaningful reforms. First, Congress must pass urgently needed
legislation, beginning with a Farm Workforce Modernization Act,
a bipartisan compromise that will help stabilize agricultural
labor system and address some of the H-2A program's flaws.
We thank the many subcommittee members who supported this
bill. In addition, Congress must end the discriminatory
treatment of agricultural workers under the Fair Labor
Standards Act, by passing the Fairness for Farm Workers Act.
DOL has announced work to begin creating OSHA heat
standards, but the process is lengthy, and farm workers need
protections from heat now. In the last few years at least three
H-2A workers have died in Georgia from heat. Miguel Angel, an
H-2A worker in Georgia asked for help, but none was provided
until it was too late.
Congress must pass the Asuncion Valdivia Heat Illness and
Fatality Prevention Act to protect workers from extreme heat.
The administration must engage in additional rulemaking to
strengthen protections and ensure accountability in the H-2A
program. This rulemaking must ensure stronger and effective
equipment and antitrafficking protections.
Joint employer liability for farm worker, farm labor
contractors and State side employers, and freedom of
association in collective bargaining agreements at H-2A
workplaces. These protections are key to ensuring that workers
have the tools necessary to assert the protections, including
the ability to raise their voices without fear of retaliation
or blacklisting.
Let us work together to make sure that we can continue
feeding America. Thank you very much.
[The prepared statement of Teresa Romero follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you, Ms. Romero. I want to
recognize now Leon Sequeira. Mr. Sequeira, you have 5 minutes.
STATEMENT OF MR. LEON SEQUEIRA, ATTORNEY
Mr. Sequeira. Thank you. Good morning, Chairwoman Adams,
Ranking Member Keller, and members of the Committee. I
appreciate the opportunity to testify today. I regularly advise
employers on the complexities of the H-2A and H-2B programs,
and represent them in the course of government audits,
investigations and litigation.
I am testifying today in my personal capacity, and not on
behalf of any client. The H-2A and H-2B programs, and the
employers who utilize them are highly regulated by numerous
Federal and State agencies.
Employers of guest workers are overwhelmingly good people
who treat their employees with respect and gratitude, and who
do their best to follow the law.
It is important to recognize that these guest worker
programs were designed by Congress to be, first and foremost,
U.S. worker protection programs. That is no employer can hire a
temporary foreign worker unless the Federal Government first
determines that employment of the foreign worker will not harm
the wages and working conditions of U.S. workers.
That rigorous determination process takes several months to
complete and requires the employer to receive approval from
three Federal agencies, and at least one State agency.
The approval process also requires, among other things,
that the employer pay a special government-mandated wage rate,
provide other benefits, and hire any able U.S. worker who wants
the job.
Once an application is approved, and sometimes even before,
employers are routinely subjected to compliance audits and
investigations by numerous State and Federal agencies to ensure
that they are complying with the rules of the program. In
conjunction with the extensive enforcement efforts, Federal
agencies also provide comprehensive outreach and educational
materials advising workers of their rights.
These efforts begin before the workers even leave their
home country. At the U.S. Consulate abroad, workers are
interviewed by State Department officials to ensure that they
have received required information from the employer, and that
the workers are provided with antitrafficking information,
including a phone hotline to report any issues they encounter
during their employment.
When workers arrive in the United States these efforts
continue. Workers will see specific government-mandated posters
at their worksite advising them of applicable protections, and
providing again, a phone hotline to report any concerns to the
Department of Labor.
In addition, the Department of Labor, and numerous State
agencies regularly conduct site visits to meet with workers and
educate them about their rights. Attached to my written
testimony is a list of just some of the many educational
brochures and pamphlets distributed by government agencies to
guest workers.
On top of all the government efforts to educate and protect
workers, there are also countless nonprofit groups, advocacy
organizations, labor unions, and legal advocacy groups that
ensure guest workers are protected. In fact, in the H-2A
program, these advocates are even guaranteed access to farm
housing to meet with workers where they live.
Despite all of these efforts, there will be employers that
do not follow the requirements of these programs. When that
happens, no one will dispute those employers should be held
liable for violations, and affected workers should be made
whole. The Department of Labor enforcement data confirms that
only a small fraction of employers violate the guest worker
program requirements.
For example, in 2019, the department approved more than
12,000 H-2A applications. That same year there were 431
enforcement cases by the Department of Labor that involved an
H-2A violation. That is just 3 percent of all approved
applications. Based on my experience, most H-2A violations
involve technical and paperwork violations that have no impact
on worker wages and working conditions.
Certainly, egregious violations occur from time to time,
but the Department of Labor's enforcement data confirms those
cases are the exception and not the rule. I will conclude with
one final point. H-2A and H-2B workers are critically important
to the farms and seasonal businesses that rely on them.
As I already noted, because the Federal Government approves
the employment of every guest worker, their employment by
definition cannot harm U.S. worker wages or working conditions.
By contrast, the Department of Labor has recognized the
biggest threat to U.S. worker wages actually comes from
competition by large numbers of people who are illegally
present in the country. Last year about 350,000 guest workers
entered the U.S. legally and returned home at the end of the
season.
In just the past 8 months, more than 440,000 people are
known to have illegally crossed the border without being
apprehended. The H-2A and H-2B programs are not perfect. No
government program is, and we should all be able to agree on
reasonable measures to help improve these programs.
I would hope that we could also agree that the country's
borders should be secure, and the people coming to work in the
United States should do so through an orderly and legal process
that protects them, and protects U.S. workers. Thank you again
for the opportunity to testify, and I look forward to your
questions.
[The prepared statement of Mr. Sequeira follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you. We will now hear from Ty
Pinkins. You have 5 minutes.
STATEMENT OF MR. TY PINKINS, CONSUMER PROTECTION ATTORNEY,
MISSISSIPPI CENTER FOR JUSTICE
Mr. Pinkins. Chairman Adams, Ranking Member Keller, and
members of the Subcommittee. I am pleased to appear before this
committee. Thank you for the opportunity to speak with you
today about the guest worker program and its impact on local
workers.
My name is Ty Pinkins. I am a veteran, served 21 years in
the Army. I am a lawyer and Equal Justice Works Fellow at the
Mississippi Center for Justice. More important than all of
that, I am a son of the Mississippi Delta.
My work as a lawyer today in the Delta focuses on ensuring
low-income community members have access to legal
representation, which they could not afford if it were not for
services offered by the Mississippi Center for Justice.
That is certainly the case with regard to local farm
workers. I am here today because across the Mississippi Delta,
farm owners participating in the H-2A program are in blatant
violation of the promises they made to the Federal Government.
The H-2A program has grown exponentially across the Nation
in recent years. There has been relatively little public
discussion of what impact this growth has had on farming
communities.
Many have simply accepted the assurances of agribusinesses
that the H-2A program needs to be expanded and streamlined
because according to the H-2A proponents, there simply are not
any Americans left willing and able to perform the demanding
physical labor required of most farm jobs.
I am here to tell you that this is a myth. While the number
of Americans working in agriculture has declined, there are
still many areas across the country where U.S. citizens depend
on farm work for their livelihoods, and the Mississippi Delta
is one of them.
Agriculture remains the dominant industry in the Delta, as
well as the major source of jobs for local community members,
the majority of whom are black. Each morning thousands of Delta
residents, almost all of them citizens, go to work at those
demanding farm labor jobs.
As in generations past, their efforts are essential to
keeping the Delta the productive agriculture area that it has
been for centuries. In many cases, those local farm workers are
carrying forward a family legacy, because their parents and
grandparents worked these same fields for generations.
A May 28th article in the New York Times, as well as a
lengthy article recently published in the Mississippi Today,
described how the rapid expansion of the H-2A program is
transforming the farm labor market in Mississippi in much the
same fashion as it is across the country. These changes have
been extremely detrimental to local farm workers.
Despite all the laws and regulations designed to protect
American workers against unfair competition from H-2A workers,
local farm workers in the Delta have been displaced as area
farmers each year import more and more foreign workers.
Absent major changes in the way the H-2A program is
administered, and its rules enforced, there will not be another
American generation of local black farm workers in the Delta.
Instead, their jobs will have all gone to H-2A workers who are
far more susceptible to employee abuse.
In accordance with the Department of Labor regulations,
farm owners make three specific promises to the Federal
Government when applying to participate in H-2A program. First,
no H-2A should be admitted to the U.S. to fill a job unless no
qualified U.S. worker is available.
In order to further this policy when requesting to
participate in H-2A programs, farm owners must promise the
Federal Government that they will contact former U.S. workers
they employed during the previous farming season and invite
them to return to the job before those farm owners reach out to
foreign H-2A workers.
Furthermore, farm owners must put forth at least the same
kind and degree of effort to recruit U.S. workers to fill those
positions as they do to hire foreign H-2A workers. Second, farm
owners who do in fact bring in H-2A workers, must pay them what
is called adverse effect wage rate, which differs by State, and
is subject to change each year. Mississippi's adverse effect
wage rate for H-2A farms is $12.45 an hour.
Third, to the extent H-2A workers are employed, their wages
and working conditions cannot undermine those of local American
farm workers.
Many business owners participating in the H-2A program
promised the Federal Government that if they employ an H-2A
worker, and a U.S. local worker is performing the same job
function, the employer must provide to the U.S. worker at least
the same benefits, wages, and working conditions that are being
provided to the H-2A workers.
Many of the dozens of farms throughout the Delta
participating in the H2A program employ a range of
discriminatory practices against local black farm workers. On
behalf of several Delta farm workers, the Mississippi Center
for Justice and Southern Migrant Legal Services have filed
suits against several Delta farms for, among other things,
discriminatory wage practices.
With that I will conclude my comments and thank you for any
questions that you may have.
[The prepared statement of Mr. Pinkins follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you, Mr. Pinkins. Under Committee
Rule 9(a), we will now question witnesses under the 5-minute
rule. I will be recognizing subcommittee members in seniority
order. Again, to ensure that the member's 5-minute rule is
adhered to, staff will be keeping track of the time.
Please be attentive to time, wrap up when your time is
over, and mute your microphone. As Chair, I now recognize
myself for 5 minutes. Mr. Pinkins, Mr. Sequeira's testimony
downplays the impact that H-2 workers have on U.S. workers.
Specifically, on page 5 of his written testimony he states in
there I quote, ``Mere employment does not harm U.S. workers.''
Do you think that local farm workers in the Mississippi
Delta would agree?
Mr. Pinkins. No. I think they would certainly disagree.
Downplaying the impact this has on U.S. workers ignores a few
things. While the national unemployment rate sits at 3.2
percent, the unemployment rate in some of the poorest counties
in the Mississippi Delta hovers around 14 percent.
Additionally, the poverty rate in some Mississippi counties
is as high as 40 percent. When you add that to the fact that in
many cases farm workers earning $7.25 an hour salary is the
only income coming into a household of about four people, you
understand the impact that this has on a single-income
household of that nature.
Chairwoman Adams. Okay. Thank you, sir. Ms. Romero, in your
testimony you described the history of racism against farm
workers in this country and how they have been excluded from
basic labor protections. What can be done by Congress to
address these racist exclusions for farm workers?
Ms. Romero. Thank you very much, ma'am. You know the Farm
Worker First Modernization Act would give an opportunity to
farm workers to work and be here in this country with a path to
legalization. We need to make sure that all the exclusions and
protections for farm workers are considered to make sure that
now we pass the Fairness of Farm Workers Act that will protect
and give the same rights to these workers that other workers
have.
When you have in most states where workers cannot earn
overtime pay, it is just unfair. We need to treat farm workers
as we treat any other labor force in this country.
Chairwoman Adams. Thank you, ma'am. I want to submit for
the record the AFL-CIO and Farm Worker Justice statements
related to H-2 visas, without objection, so ordered.
[The information from Ms. Adams follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you. I am going to recognize now--I
have got some time. I am going to yield it back, but I want to
recognize the Ranking Member for questioning the witnesses. You
are recognized, Mr. Keller.
Mr. Keller. Thank you. We cannot ignore the elephant in the
room, which is that President Biden's border crisis is a
manmade disaster. Illegal aliens and drugs are flooding into
our country at record levels, with no end in sight. The open
border undermines the lawful guest worker programs we are
discussing today.
Mr. Sequeira, how does the current environment of an open
border and unenforced immigration laws affect the H-2A and H-2B
visa programs?
Mr. Sequeira. Thank you, Mr. Keller. I think there really
are two impacts that come to mind. The first is that employers
who go through all the trouble to apply, and to legally hire
workers through these guest worker programs and pay an enormous
amount of money to consultants and attorneys, as well as the
additional benefits and wages that have to be provided, end up
being audited by the Department of Labor or other, and
nitpicked over small violations.
Meanwhile, as workers flood across the border and are hired
by other employers, they are rarely audited. Employers
generally in the program think that there is a real imbalance
and an unfairness in the fact that they legally hire workers,
yet all the enforcement efforts of the U.S. Government are
focused against them, rather than others.
Second, I would say from the worker perspective many
workers, as they who come legally in these programs, who see
folks come in illegally, and there are no repercussions for
them, will oftentimes decide well why am I going through all
the trouble to go get a visa if I can just come into the
country illegally and work.
Mr. Keller. Okay. Also, Mr. Sequeira, we have heard today
about bad actors in H-2 programs. Based on your experience, and
on the available data, are most employers doing their best to
comply with the extensive requirements of these programs?
Mr. Sequeira. In my experience they are. Again, I do quite
a bit of audit work, helping employers navigate audits by
various government agencies, and the overwhelming number of
violations are inadvertent violations with no harm to workers'
wages and working conditions.
The programs are full of scores of technical violations and
very minute detailed obligations that have to be met, including
having your Federal employee ID number on a paycheck stub, for
instance. Most of the violations are of that nature. I do not
want to say that there are never serious violations, there
certainly are. The overwhelming majority of employers do their
best to comply with the law and do so successfully.
Mr. Keller. I would say the employers that are doing it
properly want to make sure that the ones that are not and
treating people poorly are held accountable?
Mr. Sequeira. Absolutely. The employers who rely on these
programs to supplement their domestic workforce rely on these
programs, and they want to continue to have access to them, and
they have got no compassion for employers who flout the law,
and intentionally deprive their workers of their rights.
Mr. Keller. Also, Mr. Sequeira, the H-2 programs have wage
requirements intended to ensure that H-2 workers do not
negatively impact the wages of American workers. What are these
requirements, and what does the research say about them?
Mr. Sequeira. Well, Congress designed the program
specifically to ensure that U.S. workers would not be adversely
affected, and that determination has to be made before an
employer ever receives approval to hire these workers. The
Department of Labor assigns specific wages, both in H-2A, and
H-2B that the Department has determined are sufficient to not
adversely affect U.S. workers.
There is no scholarship that shows otherwise. Again,
because the basic premise of the program is you cannot hire
these workers unless you pay a wage that does not adversely
affect them. There is by definition no adverse effect.
Mr. Keller. The wages we are talking about are set by the
Federal Government, not by the people hiring the H-2
individuals?
Mr. Sequeira. That is correct, and nationwide they vary by
region in the H-2A program, and nationwide they average above
$15 an hour. In the H-2B program, they vary by occupation, and
specific locality, but I have many clients that are paying H-2B
wages close to $20, in some cases, more.
Mr. Keller. When people talk about these H-2A and H-2B
individuals that are coming under these visas, getting
mistreated, and not getting paid a proper wage. That wage is
not set by them, it is set by the government?
Mr. Sequeira. That is exactly right. Most employers would
tell you these wages that I am required to pay are much higher
than actually prevail in the local market area. Again, when you
are faced with workers who have come into the country through
other than legal means, the only requirement the Department of
Labor enforces is that people are paid the minimum wage, $7.25
an hour.
Again, employers complain I have to jump through all these
hoops and legally hire workers to pay this high wage rate, my
competitors can pay $7.25 an hour.
Mr. Keller. We do not have our immigration laws enforced at
our southern border, and we have people coming here illegally,
who are trafficked and taken advantage of.
Mr. Sequeira. In many cases, that is true, yes.
Chairwoman Adams. The gentleman's time is up.
Mr. Keller. Thank you.
Chairwoman Adams. Thank you very much. I want to recognize
Ms. Cherfilus-McCormick, you are recognized, ma'am for 5
minutes.
Mrs. Cherfilus-McCormick. Thank you, Madam Chair. My
question is for Mr. Costa. Mr. Costa, Mr. Sequeira points to
the importance of the DOL's role in verifying that there is not
an adequate supply of domestic workers. In your view, does the
DOL have adequate resources to perform that role?
Mr. Costa. Well, there is the issue of resources and
demand. The Office of Foreign Labor Certification is not
actually verifying whether there are workers available or not.
What they are doing is requiring employers to post job orders
on a website, and they are not looking at real world labor
market conditions when they do these sorts of assessments, and
I think maybe most importantly, and I think Mr. Pinkins has
spoken about this.
After these jobs are posted OFLC, the Office of Foreign
Labor Certification, is not doing anything to check to make
sure that employers actually hire the U.S. workers who applied,
so that allows them to really just overlook the U.S. workforce.
Mrs. Cherfilus-McCormick. Thank you. I have a second
question for you. Mr. Sequeira also stated that the H-2 workers
are among the most protected and educated workers when it comes
to their rights. Can you explain why even given these aspects
of the H-2 program, H-2 workers continue to face high levels of
exploitation and workforce abuse?
Mr. Costa. Sure. Even if we accept that these workers are
briefed more than other workers about their rights, the reality
is that the precarious immigration status that they have makes
them vulnerable, and makes them very unlikely to complain when
something goes wrong on the job, where they are not paid
fairly, when they have unsafe working conditions, because that
complaining can lead to getting fired, which leads to getting
deported, and often these workers are paid a legal recruitment
fee.
I also think Mr. Sequeira has also kind of glossed over the
fact that H-2 workers actually do get robbed of their wages
quite a lot. In the report that I published, we looked at data
going back from 2000 to 2019, and there was about $24 million
stolen in back wages from H-2A workers.
These are workers who earned very low wages, and it was
almost 42,000 workers who had their wages stolen over the
years, that is wage and hour data. The workers are vulnerable.
We actually published a study in 2015 showing that H-2 workers
earn approximately the same wages as documented workers, so it
is not so much that undocumented workers are undercutting the
wages, it is that H-2A workers, even though they have ``legal
status'', they are still paid low wages.
Why is that? Well, because they cannot switch jobs, they
cannot take the skills that they learned to do to another job,
so there is no wage gain, there is no wage premium for this
``legal status.''
Mrs. Cherfilus-McCormick. Thank you so much. Madam Chair, I
yield back the rest of my time.
Chairwoman Adams. Thank you very much. I want to recognize
now the Ranking Member of the Full Committee, Representative
Foxx you are recognized for 5 minutes.
Ms. Foxx. Thank you, Madam Chair. I would like to echo
subcommittee Ranking Member Keller's sentiments on the Biden
border crisis. It is as if the President wants chaos at the
border, or simply does not care. The risks of human trafficking
have been greatly increased because of the Biden
administration's open border policies.
Mr. Sequeira, would you agree that what is most urgent is
to secure the border, the southern border, and enforce our
immigration laws to stop human trafficking?
Mr. Sequeira. Thank you, Ranking Member Foxx. Yes, I would
agree with that, and I think most everyone would agree that the
border should be secure, and that the Federal Government should
do more to ensure that there is not extreme cases that we have
seen all too recently at the border with human trafficking, and
certainly the American workforce and American workers, I am
sure, would appreciate increased border enforcement, so that
they do not have to unfairly compete against workers who have
not come to the country legally.
Ms. Foxx. Well, I wish you were right in saying almost
everyone, but obviously, that is not the case, because the
Biden administration is not enforcing the law. Many employers
in North Carolina use the H-2 programs when no U.S. workers are
available for these jobs. DOL regulations are intended to
ensure that H-2 workers do not displace American workers, and I
am very familiar with the rules and regulations and hear from
employers all the time about this.
Mr. Sequeira, what do the statute regulations require
before an employer is approved to receive H-2 workers, and what
has been your experience with these regulations?
Mr. Sequeira. There are very complex regulations by the
Department of Labor, and additionally through the Department of
Homeland Security, but in essence you can boil the process down
to four major requirements. The Department of Labor has to
determine if the employer is actually offering a temporary, or
seasonal job, that it is a bona fide business, with a bona fide
job on a temporary basis.
They require the employer to pay a mandated wage. Again,
the government sets the wage at a level that it thinks is
sufficient to protect U.S. workers. Then that job opportunity
has to be advertised to U.S. workers. They have first shot at
these jobs. They have a right to the jobs. If they are
qualified, you are required to hire a U.S. applicant.
Even in the H-2A program, that requirement extends through
the 50 percent point of the employment period. Even if you have
already gone through the trouble of hiring U.S. workers--I am
sorry, hire H-2A workers because you had no U.S. workers show
up, if a U.S. worker shows up halfway through the employment
period, you are still required to hire them.
There are extensive requirements in the regulations that
employers are required to adhere to, and by and large they
work.
Ms. Foxx. Well, that is my understanding too. Contrary to
what we just heard a few minutes ago, they are paying the wage
that is set. Let us talk a little bit about that. DOL sets the
wage rates for H-2A workers for different reasons around the
country, but many employers believe that these wage rates do
not accurately reflect market conditions, and the unpredictable
nature of the rates makes it challenging for employers to know
what their labor costs will be.
Mr. Sequeira, what are the flaws in how DOL calculates the
H-2A wage rates?
Mr. Sequeira. I am not sure we have enough time today to
really discuss that in detail, but I would say in general terms
there are a lot of complaints with the way the wage data is
collected and analyzed by USDA, and I think many of those can
get into methodological problems and sample sizes.
The biggest problem in the end for employers is it is just
simply not predictable. Employers and farmers do not know from
1 year to the next what the wage rate will be. In many areas of
the country the wages will go up 5, 10, sometimes even 20
percent from 1 year to the next. You simply cannot--
particularly as a farmer who does not set the price for their
crop, you cannot effectively plan when you do not know what
your labor costs are going to be.
Ms. Foxx. I believe they went up about 17 percent recently.
I know down in Florida because I had some friends contact me
about that. Well, we would be happy to get from you an analysis
that we can submit for the record since we did not have enough
time to go into answering that question a little more
thoroughly, and I appreciate the fact that there is not enough
time.
If you will submit some material for us, we will get it in
the record. Thank you very much for your testimony. I yield
back Madam Chair.
Chairwoman Adams. Thank you. Thank you, Ranking Member. I
want to recognize Mr. Norcross. Gentleman, you have 5 minutes.
Mr. Norcross. Thank you, Chair. I certainly appreciate you
and the Ranking Member for holding this hearing. It is, as I
would describe, some of the best we have as a country, and some
of the worst. The idea of immigration as something that we all
believe in, but certainly needs to be handled in a way that
benefits everyone.
Mr. Costa, one of the biggest flaws we have seen in the H-
2B program is that the program tends to drive down wages for
both immigration workers and those American workers. You know
we talk about the wages being defined by the Department of
Labor through surveys and things like that, but can you please
discuss what Congress, Department of Labor, and others are
doing to ensure that these prevailing wages are properly paid
to workers who have those H-2B visas and workers who are
already in the U.S. who work in these industries? How do they
enforce it? We talk about enforcing the border, and I
understand those discussions. Once they are here we see such
violations of prevailing wage. Can you talk about that a little
bit?
Mr. Costas. Sure. I do think that just to State at the top,
the wage rules should be improved. They should reflect the
national standard because the H-2B statute sets a national
standard for recruitment and for workers, and at present it
only reflects local wages.
When you compare national H-2B average wages versus average
wages for all workers, the H-2B wages, my research has shown,
are usually lower. I think it is an easy fix, it just needs
political will, and the administration could actually do that
on their own.
To your point about enforcement, I think you know we do
know that H-2B industries where most H-2B workers are working,
wage theft is very common among all workers in those top
industries, wage and hour division data show that pretty
convincingly.
When wage and hour does an investigation in a major H-2B
industry, 80 percent of the time they find violations, and
there was actually 1.8 billion dollars in the past 20 years
stolen from workers in those industries. That is all the
workers in the industry, not just H-2B.
I do think that the problem with enforcing the prevailing
wage rule is that you know it is very difficult for H-2B
workers to complain because of their precarious immigration
status. They are very afraid to come forward because if an
employer finds out that they are complaining, they can just
fire them. They become deportable. That makes it very difficult
to stay in the country and pursue a claim, whether it is
through wage and hour, or whether it is through litigation.
That legal status really makes it hard for them to enforce
their rights, and that is really the crux of the issue, I
think.
Mr. Norcross. Thank you and let us be clear. The vast
majority of employers do the right thing. Occasionally they
will make a mistake. We are not talking about that. We are
talking about that 8 to 10 percent who literally undercut the
entire industry, and that is where I am going to go with my
next question.
When we start talking about those violations, those
companies that get the H-2B guest worker visa year after year,
there are dozens of them, but violations, wage and hour, health
and safety, recruitment, yet they continue to get it. They get
the next year, and do the same thing over and over again.
The question is in your opinion Department of Labor, do
they properly fund and hold these bad actors accountable? How
do we get rid of the bad guys, which helps all the good
employers?
Mr. Costa. There has been some good reporting from Buzz-
Feed that shows that many violators of the H-2B programs year
after year continue to get workers as you readily suggest. I do
think that something that would really help that has not been
done is to have some sort of a front-end system to check
whether or not employers have violated wage and hour laws,
discrimination laws, civil rights laws.
Some sort of a--and maybe call it a TSA pre-check sort of a
thing where employers submit their information and you know
attest that they have not violated these laws in the past few
years, and then have DOL verify it in some way. That way, you
know, wage and hour is vastly underfunded, and understaffed,
and probably will continue to be, so we need to have some way
to weed out these bad actors before they actually get the
visas, because as you mentioned they can violate the program
year after year and keep getting visas, you know, really with
no problem.
Mr. Norcross. Madam Chairwoman, we should take a look at
that. Again, we are not trying to overburden the 90 percent of
folks who are doing the right thing. We are just trying to get
rid of the bad actors and level the playing field, and with
that, I yield back the balance of my time.
Chairwoman Adams. Thank you, sir. Let me yield to now Ms.
Miller-Meeks, you have 5 minutes, ma'am.
Mrs. Miller-Meeks. Thank you, Chairwoman. I thank our
witnesses for being here. I am in Iowa, a former Director of
the Department of Public Health, a military veteran, a
physician, so I have had the ability to take care of people
across a broad spectrum of Iowa.
I am from Texas originally, however, so I am very familiar
with illegal immigration, and being in Iowa, I am very familiar
with H-2A and H-2B. I have visited employers who have people
that come into the program. It is a very valuable program for
us in agricultural communities.
I have also spoken with the workers at those farms, and at
those dairies who like the job that they are doing. I have been
able to take them aside to try to get information individually
from them about their working conditions as well. As I said, a
number of employers in my State use the H-2A and H-2B programs
when no U.S. workers are available.
We used to have teenagers who would go out into the fields,
but that does not seem to be an occupation that they strive to
do in the summer any longer. While they appreciate the
opportunity to fill jobs that are crucial for their operations,
they are frustrated by the challenges--these are the employers,
of navigating three different Federal departments to secure
workers of complying with complex regulations.
And let me also say that one of the bills I cosponsored on
legal immigration was passed this week through the House, and
so we want to do what we can, and the doctors I've worked with
who have come here legally think the system is unfair that it
takes them so long to become legal citizens, where people are
coming across our border with no repercussions.
Mr. Sequeira, what are the top reforms you would make to
improve these programs?
Mr. Sequeira. Thank you, Congresswoman. There are a number
of reforms, I think a number of reforms that you know Mr. Costa
and others, and employers could probably agree on. The process
is too long. Most employers complain that it is too
bureaucratic.
They have to start from the beginning every year, and again
many employers have a seasonal need every year. They have to
apply to the program every year, but every year they have to
start from scratch. The government should build a data base,
should have information to be able to quickly verify that they
have a seasonal need, that they are offering the correct wage,
and the process could be sped up, rather than taking 3 months.
It could certainly be cut down.
Similarly, the Department of Labor determines all of these
elements, that there is a temporary need, that the correct wage
is being paid, et cetera. Once you clear that hurdle, you go to
the Department of Homeland Security, and they determine all the
same stuff over again.
It is classic government bureaucracy and inefficiency that
really, I think for the benefit of the workers, for the benefit
of the employers, and for the benefit of the government and the
taxpayer, there could be a simpler, more efficient way to do
this.
Mrs. Miller-Meeks. Having visited the border several times,
and either witness, this is a yes or no question, are people
coming across the border illegally even though they are
processed, and given a return date for status, for refugee
status. I mean are those individuals vulnerable to extortion,
wage theft, and human trafficking? Yes or no, Mr. Pinkins? Yes
or no please, I have got another question, yes or no?
Are these individuals coming across our border illegally
subject to human trafficking, wage theft, vulnerabilities to
extortion. Are they being utilized by the cartels, yes or no?
Mr. Pinkins. [Off mic.]
Mrs. Miller-Meeks. Thank you. Sir, yes or no?
Mr. Sequeira. Absolutely.
Mrs. Miller-Meeks. Thank you. They are at risk. I
appreciate it. It was a yes or no question. Mr. Sequeira, in
December 2021, the Department of Labor published a proposed
rule to make changes to regulation used to determine adverse
effect wage rates for H-2A workers. The proposed rule would
continue using Agricultural Department's farm labor survey to
determine the wage rates for a majority of field and livestock
workers.
It would shift the remaining occupations to the Bureau of
Labor Statistics, Occupational Survey, because DOL believes
these jobs should receive higher wages. Are you concerned about
the effects of wage rates on the proposed rules? Is this push
or pull for further illegal immigration?
Mr. Sequeira. Congresswoman yes, I am concerned about that
proposal, and virtually every farmer I have spoken to across
the country is concerned about it because I think that the
Department of Labor fundamentally misunderstands the nature of
agricultural labor. It is not a factory job that can be easily
classified into a specific task.
Most farm jobs involve doing multiple tasks over the course
of the day, and how can you possibly apply the Department's
proposal, the absolutely highest possible wage for any of those
tasks applies to the entire period of employment. That will
break the back of American farmers.
Mrs. Miller-Meeks. Thank you so much to our witnesses.
Thank you Chair, I yield back my time.
Chairwoman Adams. Thank you. Five minutes to Representative
Jayapal, you are recognized for 5 minutes ma'am.
Ms. Jayapal. Thank you, very much Madam Chair. My home
State of Washington has one of the five largest populations of
migrant farm workers in the country, and the contributions of
farm workers to our communities and our economy, simply cannot
be overstated.
In 2015, guest farm workers on pear, apple, and cherry
operations alone contributing 619 million dollars in economic
activity in Washington State, while putting food on the table
for countless families across our State. It is absolutely
essential that farm workers receive the same labor protections
that Federal laws afford to other workers.
Migrant guest workers in particular need robust protections
because their legal status is tied to their employer, which
makes them especially vulnerable to exploitation and abuse. Ms.
Romero, let me start with you. In your testimony, you mentioned
some of the horrific labor abuses that were discovered during
Operation Blooming Onion.
In your experience, how widespread are abuses like those
found in Operation Blooming Onion in the H-2A program? How can
Congress act to address these abuses?
Ms. Romero. Thank you very much, ma'am. Farm workers come
to us everyday telling us what the abuses are. In many cases,
farm workers, when they come to work with an H-2A visa, their
passport and their phones are taken by the recruiter, because
they want to make sure that the recruitment debt gets paid
before they can send any money home.
I think the Farm Workers Modernization Act would give
legalization to these workers and would take away a big excuse
to abuse. In many cases, not to pay the workers for the work
they have done. Workers have been sent home because without
pay, saying we will be sending you your check, which they never
receive.
The Farm Workers Modernization Act would help here, but
also it is important that we have the knowledge that these
workers need somebody to help them and represent their rights.
A union, a collective bargaining agreement could do that for
them. They would be there to make sure that they have a voice,
that they have somebody to talk to when abuses are happening.
Ms. Jayapal. Well, let us talk about collective bargaining
agreements. In an April 21st letter to Secretaries Mayorkas and
Walsh, United Farm Workers urged the Department of Labor to
require H-2A employers to have collective bargaining agreements
with a labor union.
Just with a yes or no, Ms. Romero, I want to quickly go
through a list of all the ways that unions and collective
bargaining can help farm workers. Do they increase wages?
Ms. Romero. Yes.
Ms. Jayapal. How about strengthening workplace safety?
Ms. Romero. Absolutely.
Ms. Jayapal. How about improving employer-provided food,
transportation, and accommodations?
Ms. Romero. Yes.
Ms. Jayapal. Increasing enforcement of wage protections?
Ms. Romero. Yes.
Ms. Jayapal. Protecting workers from retaliation?
Ms. Romero. Absolutely.
Ms. Jayapal. These are many of the benefits that would come
forward if we were to have unions able to have a critical role
in protecting workers from abuse. Every single day, migrant
farm workers experience exploitation, fraud and abuse. The H-2A
program desperately needs increased oversight and enforcement,
and we have to do our work and continue toward meaningful
reform.
Mr. Costa, what barriers are there to the enforcement of
wage requirements and workplace safety regulations for H-2A
farm workers?
Mr. Costa. I think that the main issue is the temporary
precarious immigration status that H-2A workers have. It just
makes it too difficult to come forward and avail themselves of
the Labor Department, or other agencies because they are
worried about retaliation, which could lead to deportation,
which would not allow them to earn back the money that they
probably paid in terms of a legal recruitment fees just to get
that temporary job.
Ms. Jayapal. How would unions help build trust between
workers and worker protection agencies, and to what effect?
Mr. Costa. Well, I think they could help them know their
rights, help them bring complaints forward with less fear, by
having more information, and obviously I think a collective
bargaining agreement is one of the best protections that a
worker could have.
Ms. Jayapal. Absolutely right. Thank you all for your
testimony, and I yield back Madam Chair.
Chairwoman Adams. Thank you very much. Let me yield to Mr.
Good, you have 5 minutes sir.
Mr. Good. Thank you, Madam Chairman. Mr. Sequeira, we have
surrendered operational control of our border to Mexican crime
cartels. This has been willful, it has been intentional, it has
been purposeful by this administration. I continue to just be
baffled by my friends across the aisle. Do they live in a
fantasy land, in a land of denial, and pretend that it is not
happening at the border?
That these statistics coming from the administration, that
there has been 3 million illegal crossings in a year and half
that are encountered by Border Patrol before they release the
majority of them into the interior of our country, and then
some 800,000 criminal got aways, the ones who do not want to be
taken into our social services, free healthcare, free
education, free travel, with no requirement to appear in Court.
That 800,000, which I submit we will not know the full
extent of the harm of those until eventually when we seal the
border, whether we cutoff funding in `23, when we will
absolutely have control of this Congress because the American
people are rejecting these policies, or when we have the
presidency as well in `25, and we can seal the border then.
I think the most devious actors will then begin to unleash
their fury within the country when the border is secure. Why
would they do it now when the border is open, and their friends
are coming across, and this administration, this majority,
apparently does not care.
While that is going on, at the same time, you know, and of
course a record number in May, we had 240,000 illegal
crossings, the ones that were encountered, that does not count
again the got aways that are some estimated in the neighborhood
of 15,000 a month, or something like that. 10,000 a day now
being apprehended we are told or encountered.
Apprehended sounds like we are turning them back. We are
not. We are releasing most of them in the interior of the
country. At the same time, and this ties into the H-2
discussion, we are growing the welfare State, we have--and as
Assistant Secretary of Labor, I know you can appreciate this.
We are growing the welfare State. We have removed the work
requirements for subsistence.
We are paying more people not to work. We are paying for
housing. We are giving more provisions to folks who are not
working making them comfortable doing so. The labor
participation rate is down. We have got 10 million open jobs in
this country. Despite the democrat majority's contempt for
employers, contempt for small business owners, and their belief
that left to themselves, their own devices, they would exploit
and abuse their employees, they believe that about H-2A's as
well.
I have met with many farm groups. I visited many farms and
agriculture employers in my district, and they treat these H2A
workers like family. There is a close relationship. Many of
them have been working there for 20 or 30 years, and so forth.
I would submit it as a less than an ideal situation.
My question for you, with the 2-minutes that I have
remaining, what can be done as a former Assistant Secretary of
Labor, what can be done to get more Americans working again?
What can be done to reverse the decrease in the labor
participation rate, and to incentivize and get more Americans
working to fill these jobs so we do not have to rely on H-2
workers?
Mr. Sequeira. Congressman, that is a great question.
Probably the most difficult question anybody is going to be
asked today. It is something that has stumped social
scientists, and economists, and policymakers, and this body,
and throughout the city and the country. There is undoubtedly a
crisis in this country with regard to labor and people who want
to work.
There are some 12 million jobs available that go unfilled
every month. Certainly, employers who rely on these programs
are frustrated. It used to be that they would get a few U.S.
workers who would apply, and would work part of the time, or a
few days, and then ultimately quit.
Now employers report they cannot get any applicants at all,
and----
Mr. Good. Where did all the people go?
Mr. Sequeira. It is a great question, and how do they
survive day to day? How do they pay their bills? I do not have
the answer to that question. I wish I did. I do not know who
does have the answer to the question, but there is certainly a
failure of policy at the local level, State level, Federal
level, perhaps all of the above that has created a situation
where evidently millions of Americans feel that they do not
need to work, and I do not think that that is a good place for
America. It is certainly not a good place for American farms.
We are at a crisis on our farms today, and it will be
another generation, and we will not produce our own food. It is
going to be produced abroad, because some food and some crops
require hand labor, and if there is not the labor in this
country to do it, it can, and it is done now south of the
border.
Personally, I would rather have my food grown in the United
States where I know what is sprayed on it, how it is harvested,
and can track the supply chain.
Mr. Good. Well said, thank you. I yield back.
Chairwoman Adams. Thank you. Representative Steel, you are
recognized for 5 minutes, ma'am.
Mrs. Steel. Thank you very much. According to my local
chambers and many local companies need more employees. Our
employment rate remains very low. In southern California where
I came from, the construction, hospitality, and healthcare
industries are all in need of more employees.
Every day I hear from folks in these industries that there
is a shortage of qualified workers. These industries operate
year around. The current H-2 system is not efficient for
employers or seeking to be employed. Mr. Sequeira, if I have
pronounced it wrong, I am sorry, but should Congress adjust the
H-2B program to address the needs of the current economy?
Could Congress establish a new market driven plan for
temporary workers to enter the United States when the economy
needs them? Fewer when our economy does not? Would making guest
worker program visas portable help employers?
Mr. Sequeira. Yes, Congresswoman. Certainly, the demand for
the H-2B program far exceeds the supply of visas available.
Congress has not adjusted the permanent cap on H-2B visas since
it was created nearly 30 years ago, and a more market-based
system for allocating H-2B visas would certainly work much
better than the current system, something more along the lines
of what is used in the H-2A program where it is a market
demand.
As long as you can prove a temporary need, and are
complying with the other requirements, you can access H-2B
workers when there are not sufficient numbers of U.S. workers.
The demand is easily twice the supply, three times the supply
in the H-2B program.
Mrs. Steel. If we reform the H-2B system, including E-
Verify, could employers grow their business and fill vacant
positions, and add more economic activity to our economy?
Mr. Sequeira. I think that is undisputable, and you have
seen in the H-2A program where many employers participate in E-
Verify, utilize H-2A program for seasonal labor, and because
they have a workforce that they can count on, that they know is
available, they are able to grow their businesses, and many
businesses have succeeded very well and contributed to the U.S.
economy, and provided many more good paying jobs for U.S.
workers because there is the support of the seasonal workforce
as well.
Mrs. Steel. Thank you very much for your answer. I yield
back.
Chairwoman Adams. Is Mr. Takano on the platform, I want to
recognize?
Mr. Takano. Madam Chair, I am.
Chairwoman Adams. Yes sir, you have 5 minutes sir.
Mr. Takano. Thank you, Madam Chair. My question is for Mr.
Pinkins. Mr. Pinkins, in your experience representing black
farm workers who have been displaced by white guest workers, do
you believe that the H-2A employers are discriminating against
U.S. farm workers on the basis of race, national origin, and
age in their selection of H-2A workers and payment practices?
Mr. Pinkins. Yes. As an example, I will share this with
you. The farming season in Mississippi begins in February and
runs through November. H-2A workers are generally brought in
for that time period. The entire season involves planting and
harvesting crops like cotton, corn, soybeans, rice, et cetera.
Mississippi farmers have for years, season after season,
brought in white South Africans as H-2A workers without
affirmatively reaching out to local black American workers from
the previous season as mandated by Federal regulations. When I
say that you have to take into consideration that the country
of South Africa is over 80 percent black, and less than 10
percent white.
I grew up in the Mississippi Delta, and my work is
concentrated in the Mississippi Delta, and I have yet to see a
black South African working on the farm in the Mississippi
Delta. Hard-working Americans in the Mississippi Delta have
been doing this farm work for decades, driving tractors,
combines, and cotton pickers.
Planting crops in the spring, harvesting those crops in the
fall. For generations their families worked in those fields,
passing down essential skills and traditions of hard work. They
know the seasons. They know the geography, they know the
equipment, and they know the crops.
Local community members literally know the soil in the
Mississippi Delta. However, that is not the case with the
workers who are brought in under the H-2A program. They arrive
without an adequate understanding of the different seasons,
equipment, crops, and so how do farm owners overcome this
employee training hurdle?
Well, I will tell you. Many farm owners begin by finding or
forcing local black workers to train and mentor foreign white
H-2A workers on how to operate the equipment, understand the
season, and plant and harvest the crops. All this while, the
local workers who are doing the training are being paid as low
as $7.25 an hour, the Federal minimum wage, while the farm
owners are intentionally paying the H2A workers at least the
adverse effect wage rate, and sometimes as high as $16 an hour.
Next, after they have been adequately trained, the farmers
put their H-2A workers on the same type of equipment, tractors,
cotton pickers, and combines, that the local black workers are
operating in the same fields at the same time. The only
difference is that the H-2A workers are still being paid up to
$16 an hour, while local black workers who trained them and are
now working alongside them, are paid $7.25 to $8 an hour.
Last, what happens when local workers ask for a fair raise?
Everyone wants to be paid fairly for an honest day's work. When
local workers ask for a raise, ask to be paid equal to their
South African counterparts, one of three things happen. They
are either ignored, flat out told no, or threatened with being
fired.
Mr. Takano. Mr. Pinkins, I am trying to understand this--I
mean I have heard of situations where foreign workers are
brought in, whether legally or not legally, and the motivation
is to pay the foreign workers less. You are telling me that
these H-2A employers are paying specifically white South
African workers more than the local black workforce.
Help me understand. Obviously, it is not an economic
reason. You are telling me black workers are more qualified,
more experienced, and know about the local conditions.
Mr. Pinkins. Yes. If a farm owner trusts the black worker
enough to train an untrained worker to harvest his crops worth
millions of dollars, clearly that local black worker is
qualified to do the job. What does not make sense is why a farm
owner would bring in an H-2A worker under a policy that says
that he has to pay him up to $12.45 an hour, but still pay that
local black worker $7.25 an hour.
That does not make sense from a business perspective. The
common denominator here is race. You want to pay local black
workers the least possible, while paying white South Africans
sometimes $12.45 an hour, which is the adverse effect wage
rate, and in many cases up to $14, $15, $16 an hour.
Mr. Takano. Thank you, Mr. Pinkins. Madam Chair, the only
conclusion I would reach is that these employers have to
specifically recruit white workers from South Africa over black
workers in South Africa, if what this witness is telling me is
true. I yield back.
Chairwoman Adams. Thank you very much. Are there other
members on the platform who we have not recognized? Okay. Then
we are going to move on. I want to say thank you to the
witnesses. I want to remind my colleagues that pursuant to
committee practice, materials for submission to the hearing
record must be submitted to the committee clerk within 14 days
following the last day of the hearing, so by close of business
on August 3, 2022, preferably in Microsoft Word format.
The materials submitted must address the subject matter of
the hearing. Only a member of the subcommittee, or an invited
witness may submit materials for inclusion in the hearing
record. Documents are limited to 50 pages each. Documents
longer than 50 pages will be incorporated into the record via
an internet link that you must provide to the committee clerk
within the required timeframe.
Please recognize that in the future that link may no longer
work. Pursuant to House rules and regulations, items for the
record should be submitted to the clerk electronically by
emailing submissions to [email protected].
Now, I want to again thank the witnesses for their
participation today. It has been a very enlightening hearing.
Thank you for your testimony. Members of the subcommittee may
have some additional questions for you, and we ask the
witnesses to please respond to those questions in writing.
The hearing record will be held open for 14 days in order
to receive those responses. I want to remind my colleagues that
pursuant to committee practice, witness questions for the
hearing record must be submitted to the majority committee
staff or committee clerk within 7 days.
The questions submitted must address the subject matter of
the hearing. We will now have closing statements, recognizing
Ranking Member Keller for a closing statement. Mr. Keller you
are recognized sir.
Mr. Keller. Thank you, Madam Chair. Also thank you to our
witnesses for appearing before the committee today. President
Biden's border crisis hangs over this hearing. It is a self-
made disaster that is endangering millions, and creating a
humanitarian crisis.
We cannot meaningfully discuss reforming the H-2 programs
while our border is wide open and being overrun. Employers need
the ability to hire temporary H-2 guest workers when no U.S.
workers are available, even though the government makes
programs inefficient and frustrating to navigate.
The H-2 programs are certainly in need of improvements.
While the H-2 programs have extensive protections for guest
workers and American workers, H-2 employers cannot compete in
an environment with an unsecure border, and millions of illegal
workers filling labor shortages.
President Biden must secure the border, build the wall, and
enforce our immigration laws, which will allow the H-2 programs
to operate properly, and allow Congress to address the lawful
guest worker programs. Thank you, and I yield back.
Chairwoman Adams. Thank you, sir. Let me just recognize
myself for the purpose of making my closing statement, and I
want to again thank our witnesses. Thank you for your time, and
for your testimoneys.
Today we repeatedly heard the need for increased worker
protections and employer accountability within the H-2 guest
work programs. For too long, foreign workers have been
exploited, defrauded, and abused at the hands of their
employers.
As I stated earlier, these programs do not reflect their
intended purpose. Instead, these programs are relic of slavery.
Together we must reform the H-2 visa program to ensure that all
workers are treated with dignity and respect. To that end I
look forward to working with my colleagues to advance several
legislative proposals to prohibit worker discrimination, to
protect workers from retaliation, and to strengthen labor
standards.
Again, thank you to our witnesses. If there is no further
business, without objection, the subcommittee stands adjourned.
[Whereupon, at 11:46 a.m., the Subcommittee adjourned.]
[Additional submissions from Ranking Member Keller
follows:]
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[Additional submissions from Mr. Sequeira follows:]
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[all]